People v. Barry

Appellate Division of the Supreme Court of New York

People v. Barry

292 A.D.2d 281, 739 N.Y.S.2d 254, 2002 N.Y. App. Div. LEXIS 3155

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 26, 2002

StatusPublished

This text of 292 A.D.2d 281 (People v. Barry) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Barry, 292 A.D.2d 281, 739 N.Y.S.2d 254, 2002 N.Y. App. Div. LEXIS 3155 (N.Y. Ct. App. 2002).

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Opinion

Judgment, Supreme Court, Bronx County (Nicholas Iacovetta, J.), rendered June 24, 1997, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 4V2 to 9 years, unanimously affirmed.

Defendant’s speedy trial motion was properly denied. The People’s delay in perfecting their appeal in this case (226 AD2d 266) was reasonable for speedy trial purposes (see, CPL 30.30 [4] [a]; People v Grafton, 136 AD2d 960, affd 73 NY2d 779). The issue in the People’s appeal was the same as an issue then pending before the Court of Appeals. Accordingly, the People successfully moved this Court for an enlargement of time to perfect their appeal in order to await the decision of the Court of Appeals. This delay was in the interest of judicial economy since the determination of the People’s appeal depended on the outcome of the similar cases pending before the Court of Appeals (see, People v Rarback, 40 NY2d 922). We also conclude that the People’s decision to pursue the appeal was a proper exercise of prosecutorial discretion.

The challenged portions of the prosecutor’s summation do not warrant reversal. The court’s thorough curative instructions, which the jury is presumed to have followed (see, People v Davis, 58 NY2d 1102), were sufficient to prevent any prejudice from the prosecutor’s remarks concerning defendant’s opportunity to concoct a story. The remaining remarks challenged by defendant on appeal were not so egregious as to deprive defendant of a fair trial (see, People v D’Alessandro, 184 AD2d 114, 118-119, lv denied 81 NY2d 884). Concur — Williams, P.J., Tom, Saxe, Rubin and Friedman, JJ.

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Judgment, Supreme Court, Bronx County (Nicholas Iacovetta, J.), rendered June 24, 1997, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 4V2 to 9 years, unanimously affirmed.

Defendant’s speedy trial motion was properly denied. The People’s delay in perfecting their appeal in this case (226 AD2d 266) was reasonable for speedy trial purposes (see, CPL 30.30 [4] [a]; People v Grafton, 136 AD2d 960, affd 73 NY2d 779). The issue in the People’s appeal was the same as an issue then pending before the Court of Appeals. Accordingly, the People successfully moved this Court for an enlargement of time to perfect their appeal in order to await the decision of the Court of Appeals. This delay was in the interest of judicial economy since the determination of the People’s appeal depended on the outcome of the similar cases pending before the Court of Appeals (see, People v Rarback, 40 NY2d 922). We also conclude that the People’s decision to pursue the appeal was a proper exercise of prosecutorial discretion.

The challenged portions of the prosecutor’s summation do not warrant reversal. The court’s thorough curative instructions, which the jury is presumed to have followed (see, People v Davis, 58 NY2d 1102), were sufficient to prevent any prejudice from the prosecutor’s remarks concerning defendant’s opportunity to concoct a story. The remaining remarks challenged by defendant on appeal were not so egregious as to deprive defendant of a fair trial (see, People v D’Alessandro, 184 AD2d 114, 118-119, lv denied 81 NY2d 884). Concur — Williams, P.J., Tom, Saxe, Rubin and Friedman, JJ.

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Bluebook (online)

292 A.D.2d 281, 739 N.Y.S.2d 254, 2002 N.Y. App. Div. LEXIS 3155, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-barry-nyappdiv-2002.

Opinion

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